“High Noon For The Future Of The Voting Rights Act At The Supreme Court”

Nina Totenberg for NPR:

The potential to render the Voting Rights Act nearly a dead letter

In fact, 33 states have “introduced, refiled, or carried over more than 165 restrictive laws this year,” says Myrna Pérez, director of the Voting Rights and Elections Program at New York University’s Brennan Center for Justice.

Remember too that Chief Justice Roberts, in striking down the pre-clearance provision of the law eight years ago, highlighted Section 2’s importance as the law’s alternative enforcement mechanism. But Roberts has long been disdainful of the need for the Voting Rights Act, dating back to his youth as an aide in Ronald Reagan’s administration, when he unsuccessfully urged the president not to sign the amended law. Now, decades later, he presides over a 6-to-3 conservative majority on a court that is, at minimum, skeptical about the need for tough voting rights enforcement.

The Biden administration has withdrawn the Trump Justice Department’s brief, which sided with Arizona Republicans in the case. But the new administration is not siding with Democratic Party arguments either.

“They’re in an effort at damage control,” says law professor Richard Hasen, a voting rights expert at the University of California, Irvine. “What they’re trying to do is prevent the court from making bad law that will apply to more draconian voting restrictions. So this fight is less about whether the Democratic Party loses but how the Democratic Party loses.”

In the past, the Supreme Court established a variety of tests under Section 2 to prevent vote dilution in congressional redistricting, but this is the first time that the court will examine a state law that has been found to disproportionally result in the denial of the right to vote for minorities. And there is every possibility that the high court could make it much more difficult, or practically impossible, to challenge voting rights restrictions in the future.

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Travis Crum: “Rethinking the Race or Party Question in Brnovich”

Here is a guest post from Travis Crum of Wash U:

The Supreme Court will soon hear oral argument in Brnovich v. DNC, a major voting rights case. As relevant here, the case concerns an Arizona ballot-collection law that the Ninth Circuit concluded was enacted with discriminatory intent in violation of the Fifteenth Amendment’s prohibition against racial discrimination in voting. I filed an amicus brief in support of respondents addressing the Fifteenth Amendment’s drafting and ratification as well as Congress’s enforcement authority under that Amendment. But in this post, I want to expound on a different point: Brnovich provides the Supreme Court with its first opportunity after the 2020 presidential election to address allegations of voter fraud—and to correct its past willingness to uphold voter-suppression laws based on unfounded allegations.

For decades, Arizona permitted individuals to collect early ballots and deliver them to a polling place. Historically, minority voters were far more likely than white voters to rely on ballot collectors due to unreliable mail service and lack of transportation options. And in recent years, a “substantial increase in American Indian and Hispanic voting [was] attributable to ballot collection.”

Then, in 2016, Arizona passed H.B. 2023, which criminalizes the collection of another person’s early ballot, with exceptions for postal workers, caregivers, and family and household members. Arizona enacted H.B. 2023 notwithstanding the dearth of “evidence of any fraud in the long history of third-party ballot collection in Arizona.” As the Ninth Circuit explained, the state legislators who supported H.B. 2023 relied on two pieces of “evidence.”

The first was “farfetched allegations of ballot collection fraud” made by a former state senator who had introduced a predecessor bill that was “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted.” The second was a “racially tinged video” produced by the Maricopa County Republican Party Chair showing “a man of apparent Hispanic heritage appearing to deliver early ballots.” The video included commentary stating that “the man was … stuff[ing] the ballot box” and that, although it was unknown whether the man “was an illegal alien, a dreamer, or citizen,” he was a “thug.” The video was “widely distributed … on Facebook and YouTube.” There was zero evidence that the man delivering the ballots was engaged in illegal activity.

The rationales underlying H.B. 2023 strongly resemble the unfounded voter fraud allegations surrounding the 2020 election. Indeed, they read like a bad prequel to the past few months.

A key issue in Brnovich is whether racial or partisan considerations motivated H.B. 2023’s passage and provided the underlying rationales for the Arizona legislature’s anti-fraud concerns. As Rick Hasen has shown, the question whether race or party motivated a governmental decision comes up frequently in election law cases given high rates of racially polarized voting. The paradigmatic example arises in the redistricting context, where courts must determine whether a district was drawn along racial or partisan lines. The Supreme Court has required that race predominate in the redistricting context before rigorously reviewing a map. That high threshold has been justified on the pragmatic grounds that mere awareness of race in the redistricting process would risk invalidating virtually every redistricting plan. After all, even casual visitors to, say, Chicago will notice that its south side is predominately black whereas its north side is overwhelmingly white—and redistricting plans are frequently drawn by politicians with intimate knowledge of local demographics.

That framework is inappropriate in a case like Brnovich that involves the fundamental right to cast a ballot. Indeed, in its first-ever decision addressing voter ID laws, the Supreme Court left the door open to this argument. Although the Court concluded that states could pass prophylactic measures even absent evidence of voter fraud, a plurality of Justices observed that a voter ID law would be unconstitutional if “partisan considerations … had provided the only justification.”

In Brnovich, the Court should breathe new life into this language and make clear that it will invalidate pre-textual anti-fraud measures enacted for either racist or partisan reasons. When disentangling a legislature’s reasons for restricting access to the ballot, neither race nor party are proper motivations. We live in an age where claims of voter fraud are often stalking horses for racist or partisan motives—and the Court’s deferential approach has allowed these claims to fester.

This begs the question: does the Roberts Court care about unsubstantiated allegations of voter fraud? While the Court intervened in several pre-election disputes last fall, it assiduously avoided them after the election. Indeed, the Court recently denied cert in the Pennsylvania election cases over the dissents of three Justices. A majority of Justices clearly viewed the cases as radioactive and sought to distance the Court from the election’s partisan fallout. Thus, there is at least some appetite on the Court to avoid disputes about election fraud, and if those Justices are looking for a way to tamp down on such baseless claims, then Brnovich provides that opportunity.

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H.R. 1’s Revised Prohibition of Partisan Gerrymandering

H.R. 1—the omnibus electoral reform package—is scheduled for a House vote later this week. The managers’ amendment to the bill was just released, and includes (among other things) some substantial (and beneficial) changes to the bill’s prohibition of partisan gerrymandering.

First, the amendment bars intentional (not just excessive) gerrymandering: any congressional plan “drawn with the intent . . . of unduly favoring or disfavoring any political party.” To assist in the determination of partisan intent, the amendment creates a rebuttable presumption that a map that wins significant bipartisan support doesn’t have a partisan purpose.

Second, the amendment clarifies that the severity of a plan’s partisan bias is relevant to the assessment of partisan effect. The bill had previously referred only to the durability of a map’s partisan skew. Severity and durability are distinct concepts, of course, and both are important aspects of an effective gerrymander.

Third, and maybe most importantly, the amendment identifies one way in which a plan can have the effect of unduly favoring a party. Based on quantitative measures of partisan fairness like the efficiency gap, the declination, and so on, a plan must be likely to have a partisan bias exceeding one seat (in states with twenty or fewer congressional districts) or two seats (in states with more than twenty congressional districts). Based on alternative maps (most likely generated by a redistricting algorithm), it must also be possible to design a less biased plan that complies with all nonpartisan legal criteria.

Note that this approach to demonstrating partisan effect doesn’t preclude other ways of establishing liability. Note also the convergence between this approach and the plaintiffs’ proposals in Rucho and other partisan gerrymandering cases. Those proposals generally required a large and durable partisan effect that couldn’t be justified by legitimate factors. That’s what this approach calls for, too, only in somewhat more specific language.

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Trump Continues to Lie About the 2020 Election Being Stolen in CPAC Speech

From the speech transcript:

Another one of the most urgent issues facing the Republican Party is that of ensuring fair, honest, and secure elections. Such a disgrace. Such a disgrace. Such a disgrace. We must pass comprehensive election reforms and we must do it now. The democrats use the China virus as an excuse to change all of the election rules without the approval of their state legislatures, making it therefore illegal. It had a massive impact on the election. Again, you have to go to the legislatures to get these approvals. This alone would have easily changed the outcome of the election at levels that you wouldn’t have even believed. Even with COVID, even with all of the things, the numbers are staggering. We can never let this or other abuses of the 2020 election be repeated or happen again. Can never let that happen again.

You see what’s going on. We’ve been set back so greatly with other countries and with the world. We need election integrity and election reform immediately. Republicans should be the party of honest elections that can give everyone confidence in the future of our country. Without honest elections, who has confidence? Who has confidence? This issue is being studied and examined, but the reality is you cannot have a situation where ballots are indiscriminately pouring in from all over the country, tens of millions of ballots, where are they coming from? They’re coming all over the place. We’re illegal aliens and dead people are voting, and many other horrible things are happening that are too voluminous to even mention. But people know. I mean it’s being studied and the level of dishonesty is not to be believed.

We have a very sick and corrupt electoral process that must be fixed immediately. This election was rigged and the supreme court and other courts didn’t want to do anything about it.

We did. If you just take that one element where they didn’t go through a legislature, it’s illegal, you can’t do it. It’s in the constitution. They didn’t have the courage, the supreme court, they didn’t have the courage to act, but instead used process and lack of standing. I was told the President of the United States has no standing. It’s my election, it’s your election. We have no standing. We had almost 25 … if you think of it … we had almost 20 states go into the supreme court so that we didn’t have a standing problem. They rejected it. They rejected it. They should be ashamed of themselves for what they’ve done to our country. They didn’t have the guts or the courage to make the right decision. They didn’t want to talk about it. We had the case led by the great State of Texas. 18 States went in. “You don’t have standing.” Let’s not talk about it. They didn’t have the guts to do what should be done.

And that’s on top of all of these other forms of cheating, but this is the most basic of all. They would have local courts and local politicians change the rules in some cases a day or two before the election. This should never be allowed to happen to another presidential candidate or presidential race, should never be allowed to happen.

Today I want to outline the steps that we must take to have an election system in this country that is honest, fair, and accurate. We need one election day, not 45, 30. One day, like it’s been. And the republicans don’t get this, and the other things I’m going to say, that you should, like the supreme court, be ashamed of yourselves. One day. One day. And the only people that should be allowed to vote by mail are people that can be proven to be either very sick or out of the country or military where they can’t do it. One day. They have millions and millions of ballots sitting around all over the place for long periods of time. Gee, I wonder what happens with those ballots? I wonder what happens. It’s common sense. It’s a disgrace. It’s an absolute disgrace.

There should be a legitimate reason for someone to vote absentee, has to have a reason. We should eliminate the insanity of the mass and very corrupt mail-in voting. We must have voter ID. voter ID. To get into the Democratic National Convention, when they had the convention, you needed voter ID. You needed an ID card. You couldn’t get it unless you had an ID. So many people told me, “You can’t get in that place. You need ID. Nobody had ID.” You need voter ID. They know that. This is a con job. They’re conning everybody. They know that. They know the wall was good. They knew the wall would work, but didn’t want to have it because we wanted. I made one big mistake in the world. I should have said, “We will not have a wall.” And then they would have said, “Let’s build a wall.” I made a big mistake. I made a big mistake. I’m sorry. It took us a year and a half extra because of that mistake. “We will not have a wall … We need a wall immediately,” said Chuck Schumer.

We need universal signature matching. They want to pass a bill where you don’t have to match signatures, where signatures don’t mean anything. Now they know it’s … just like with the wall, just like with voter ID, when you need to go into anything that’s Democrat run, you need it. But for voting, which is our most sacred institution, they don’t want to let you have it.

There should be a 100 percent requirement to verify the citizenship of every person who votes and there must be a chain of custody protections for every ballot. Every ballot. And you saw what happened in Detroit and Philadelphia and many other places, swing states mostly. All over, but swing states mostly. You saw what happened. You saw what was going on. You saw that more people … you take a look at the votes, when you have more votes than you have people, that’s a problem, right? Is that a problem? We have a little problem adjusting in Detroit. We seem to have more votes than we have people, a lot more votes, and election changing number. We’re not talking about a number where you can’t … no, these aren’t election changing numbers. In Pennsylvania, they had hundreds of thousands of more votes than they had people voting. What’s that all about? What’s that all about? Cheating they say. Yeah, I’d say so.

In the history of our country, and it has taken place for years in Pennsylvania and Detroit and various other places. But there’s tremendous, never like this, because they used COVID as a way of cheating. That’s what happened. And everybody knows it. Hundreds of thousands and millions of ballots. They used it as a way of getting what they’ve wanted for many years. And the republicans have to do something about it. They better do something about it. Our election process is worse than that in many cases of a third world country. You know that, you saw what was going on. Even if you consider nothing else, it is undeniable that election rules were illegally changed at the last minute in almost every swing state with the procedures rewritten by local politicians … you’re not allowed to do that … and local judges. They want more time, they want this, they want that. All done by local politicians or local judges, as opposed to state legislatures as required by the Constitution of the United States. And these are just numbers that are massive. These aren’t little numbers, these are numbers that in each state is a transformative number. It changes the outcome of the election. And it’s not close. Regardless of your political views, this should concern you as a constitutional matter. And the supreme court, again, didn’t have the guts or the courage to do anything about it. And neither did other judges. And democrats even admitted in Time-

And Democrats even admitted in Time Magazine, which is, I would say on the liberal side. They just couldn’t hold it in. They had to brag about it, because what they did, they had to brag about it. They couldn’t do it. You’ve got to read this story. It’s a disaster. It’s a disaster for our country that we can allow something so corrupt to happen. Read that article. I really encourage you. You read that article. Yet all of the election integrity measures in the world will mean nothing if we don’t have free speech and that’s where we’re at now.

If Republicans can be censored for speaking the truth and calling out corruption, we will not have democracy and we will have only left wing tyranny. And we can do this. We can do this. We’re smarter than they are. We’re tougher than they are. For some reason we just don’t… we don’t get it done. We let them attack our businesses and we don’t attack their businesses. I believe your numbers are bigger than their numbers, but you’re nicer than they are. You’re not as vicious as they are….

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“Census data snafu upends 2022 elections”

Politico:

A six-month delay holding up the data that states use to draw their legislative districts is mangling plans for the 2022 elections, as states discuss postponing primaries and navigating legal deadlines for redistricting that some are now almost certain to miss.

The Census Bureau announced in mid-February that redistricting data — the granular, block-level population counts that are used to draw equal-population political boundaries for state legislatures and the House of Representatives — would be released by Sept. 30 this year, well past the usual delivery date of March 31.

Many states are typically done with redistricting by then, not just starting it, and the delay puts states with early primaries and redistricting deadlines in a difficult position. At least nine states have constitutional or statutory deadlines to redraw their maps, according to the National Conference of State Legislatures, that won’t mesh with such a profound delay in the data delivery. Election officials in some states, such as North Carolina, have recommended moving back early primary dates to make more time for drawing new districts. And both political parties will have to grapple with how to recruit candidates to run for districts that may not exist until just before election season begins.

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“How Pro-Trump Forces Pushed a Lie About Antifa at the Capitol Riot”

NYT:

At 1:51 p.m. on Jan. 6, a right-wing radio host named Michael D. Brown wrote on Twitter that rioters had breached the United States Capitol — and immediately speculated about who was really to blame. “Antifa or BLM or other insurgents could be doing it disguised as Trump supporters,” Mr. Brown wrote, using shorthand for Black Lives Matter. “Come on, man, have you never heard of psyops?”

Only 13,000 people follow Mr. Brown on Twitter, but his tweet caught the attention of another conservative pundit: Todd Herman, who was guest-hosting Rush Limbaugh’s national radio program. Minutes later, he repeated Mr. Brown’s baseless claim to Mr. Limbaugh’s throngs of listeners: “It’s probably not Trump supporters who would do that. Antifa, BLM, that’s what theydo. Right?”

What happened over the next 12 hours illustrated the speed and the scale of a right-wing disinformation machine primed to seize on a lie that served its political interests and quickly spread it as truth to a receptive audience. The weekslong fiction about a stolen election that President Donald J. Trump pushed to his millions of supporters had set the stage for a new and equally false iteration: that left-wing agitators were responsible for the attack on the Capitol.

In fact, the rioters breaking into the citadel of American democracy that day were acolytes of Mr. Trump, intent on stopping Congress from certifying his electoral defeat. Subsequent arrests and investigations have found no evidence that people who identify with antifa, a loose collective of antifascist activists, were involved in the insurrection.

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“In Statehouses, Stolen-Election Myth Fuels a G.O.P. Drive to Rewrite Rules”

Michael Wines for the NYT:

Led by loyalists who embrace former President Donald J. Trump’s baseless claims of a stolen election, Republicans in state legislatures nationwide are mounting extraordinary efforts to change the rules of voting and representation — and enhance their own political clout.

At the top of those efforts is a slew of bills raising new barriers to casting votes, particularly the mail ballots that Democrats flocked to in the 2020 election. But other measures go well beyond that, including tweaking Electoral College and judicial election rules for the benefit of Republicans; clamping down on citizen-led ballot initiatives; and outlawing private donations that provide resources for administering elections, which were crucial to the smooth November vote.

And although the decennial redrawing of political maps has been pushed to the fall because of delays in delivering 2020 census totals, there are already signs of an aggressive drive to further gerrymander political districts, particularly in states under complete Republican control.

The national Republican Party joined the movement this past week by setting up a Committee on Election Integrity to scrutinize state election laws, echoing similar moves by Republicans in a number of state legislatures.

Republicans have long thought — sometimes quietly, occasionally out loud — that large turnouts, particularly in urban areas, favor Democrats, and that Republicans benefit when fewer people vote. But politicians and scholars alike say that this moment feels like a dangerous plunge into uncharted waters.

The avalanche of legislation also raises fundamental questions about the ability of a minority of voters to exert majority control in American politics, with Republicans winning the popular vote in just one of the last eight presidential elections but filling six of the nine seats on the Supreme Court.

The party’s battle in the past decade to raise barriers to voting, principally among minorities, young people and other Democrat-leaning groups, has been waged under the banner of stopping voter fraud that multiple studies have shown barely exists.

“The typical response by a losing party in a functioning democracy is that they alter their platform to make it more appealing,” Kenneth Mayer, an expert on voting and elections at the University of Wisconsin-Madison, said. “Here the response is to try to keep people from voting. It’s dangerously antidemocratic.”

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“At conservative conference, Trump’s election falsehoods flourish”

WaPo:

Right Side Broadcasting Network was streaming the Conservative Political Action Conference, and the content was becoming a problem. One of the weekend’s first panels had brought a lawyer for Donald Trump’s 2020 campaign together with other anti-“voter fraud” crusaders, and they suggested that Nevada’s election was stolen for the Democrats.

“We must jump in here and make a small disclosure: We want you to do your own research,” broke in Brian Glenn, a host at the conservative streaming network.

The Republican Party on display at CPAC this weekend was anti-monopoly, anti-free trade, skeptical of foreign wars, girded for economic conflict with China — and frequently invested in things that aren’t true.

Election myths were mentioned often, though rarely the damage they’d led to on Jan. 6, when hordes of Trump supporters fueled by the falsehoods and seeking to block Joe Biden’s election stormed the Capitol.

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“How Trump upended the race to control the House through 2030”

Politico:

Days after the 2020 election, House Democrats convened to address some of the party’s most surprising losses, and Democratic Congressional Campaign Committee Chair Cheri Bustos name-checked one in particular: Rep. Debbie Mucarsel-Powell, a freshman from South Florida.

Party data missed a huge surge to the right in her Miami-based district, where voters backed Hillary Clinton by 16 points in 2016 — and then voted for former President Donald Trump by more than 5 points in 2020, after he rebounded with Cuban Americans and other Latino groups.

Traditionally, state legislators and political mapmakers rely heavily on recent election results for clues about how communities will vote in the future — baselines they use to gerrymander advantageous districts for their party. But the whiplash in Trump-era elections make drawing conclusions from those results more complicated this year. And both parties’ strategists know that if they make bad bets, drawing districts based on elections that were driven more by Trump’s singular personality than by trends that will persist until 2030, those mistakes could swing control of the House against them over the next decade.

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“Some local GOP leaders fire up base with conspiracies, lies”

AP:

A faction of local, county and state Republican officials is pushing lies, misinformation and conspiracy theories that echo those that helped inspire the violent U.S. Capitol siege, online messaging that is spreading quickly through GOP ranks fueled by algorithms that boost extreme content.

The Associated Press reviewed public and private social media accounts of nearly 1,000 federal, state, and local elected and appointed Republican officials nationwide, many of whom have voiced support for the Jan. 6 insurrection or demanded that the 2020 presidential election be overturned, sometimes in deleted posts or now-removed online forums.

“Sham-peachment,” they say, and warn that “corporate America helped rig the election.” They call former president Donald Trump a “savior” who was robbed of a second term — despite no evidence — and President Joe Biden, a “thief.” “Patriots want answers,” they declare.

The bitter, combative rhetoric is helping the officials grow their constituencies on social media and gain outsized influence in their communities, city councils, county boards and state assemblies. And it exposes the GOP’s internal struggle over whether the party can include traditional conservative politicians, conspiracy theorists and militias as it builds its base for 2022.

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“Determinants of Rejected Mail Ballots in Georgia’s 2018 General Election”

Enrijeta ShinoMara Suttmann-Lea, and Daniel A. Smith in Political Research Quarterly:

Because of the COVID-19 threat to in-person voting in the November 2020 election, state and local election officials have pivoted to mail-in voting as a potential solution. This method of voting—while safe from a public health standpoint—comes with its own set of problems, as increased use of mail voting risks amplifying existing discrepancies in rejected mail ballots. While some mail ballot rejections are to be expected, a lack of uniformity in whose ballots get rejected among subgroups of voters—whether for mistakes on a ballot return envelope (BRE) or lateness—raise concerns about equal representation. We draw on official statewide voter file and mail-in ballot data from the 2018 midterm election in Georgia, a state that until the pandemic did not have widespread use of mail voting, to test whether some voters are more likely to cast a mail ballot that does not count. Most importantly, we distinguish between ballots rejected for lateness and those rejected for a mistake on the return envelope. We find that newly registered, young, and minority voters have higher rejection rates compared with their counterparts.

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“Trump shares plans for new super PAC in Mar-a-Lago meeting”

Politico:

President Donald Trump told political advisers Thursday that he’s chosen longtime ally Corey Lewandowski to run a yet-to-be-formed super PAC as part of his expanding post-presidential political apparatus, according to multiple people familiar with the discussion.

The decision was made in a multi-hour meeting at Trump’s Mar-a-Lago estate on Thursday. Trump gathered his top political lieutenants, including Donald Trump Jr., former campaign manager Bill Stepien, former deputy campaign manager Justin Clark, former campaign manager Brad Parscale, former White House social media director Dan Scavino and senior adviser Jason Miller. Alex Cannon, an attorney who has been advising the Trump team on the post-White House plans, was also present.

Lewandowski, himself a former campaign manager for Trump in 2016, did not respond to requests for comment. In a statement, Trump spokesman Jason Miller said the former president will announce more details about his political operation “in the coming weeks.”

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“How to Keep Extremists Out of Power”

That’s the title the NYT gave my latest piece. I’ll include an excerpt here, though it’s a bit hard to excerpt this one because I raise reform proposals in four different areas:

American democracy faces alarming risks from extremist forces that have rapidly gained ground in our politics. The most urgent focus of political reform must be to marginalize, to the extent possible, these destabilizing forces.

Every reform proposal must be judged through this lens: Is it likely to fuel or to weaken the power of extremist politics and candidates?

In healthy democracies, they are rewarded for appealing to the broadest forces in politics, not the narrowest. This is precisely why American elections take place in a “first past the post” system rather than the proportional representation system many other democracies use.

What structural changes would reward politicians whose appeal is broadest? We should start with a focus on four areas.

Reform the presidential nomination process

Until the 1970s, presidential nominees were selected through a convention-based system, which means that a candidate had to obtain a broad consensus among the various interests and factions in the party. “Brokered conventions” — which required several rounds of balloting to choose a nominee — offered a vivid demonstration of how the sausage of consensus was made. In 1952, for example, the Republican Party convention selected the more moderate Dwight D. Eisenhower over Robert A. Taft, the popular leader of the more extreme wing of the party, who opposed the creation of NATO. …

How can we restore some of the party-wide consensus the convention system required? The parties can use ranked-choice voting, which allows voters to rank candidates in order of preference. This rewards candidates with broad appeal to a party’s voters, even if they have fewer passionate supporters. … Ranked-choice voting reduces the prospects of factional party candidates. Presidents with a broad base of support can institute major reforms, as Teddy Roosevelt, Franklin Delano Roosevelt, Lyndon Johnson and Ronald Reagan demonstrated.

Reform the party primaries

Many incumbents take more extreme positions than they might otherwise endorse because they worry about a primary challenge.

One way to help defang that threat is to eliminate “sore-loser” laws. These laws, which exist in some form in 47 states, bar candidates who have lost in a party primary from running in the general election as an independent or third-party candidate. Thus, if a more moderate candidate loses in a primary to a more extreme one, that person is shut out from the general election — even if he or she would likely beat the (sometimes extreme) winners of the party primaries. One study finds that sore-loser laws favor more ideological candidates: Democratic candidates in states with the law are nearly six points more liberal and Republicans nearly nine-to-10 points more conservative than in states without these laws. …

Reform gerrymandering

Many reformers agree on the need to take redistricting out of the hands of partisan state legislatures and give it to a commission. In several recent state ballot initiatives, voters have endorsed this change. But that still raises a question: What constitutes a fair map?

Redistricting reform should have as a goal the creation of competitive election districts. Competitive districts pressure candidates from both the left and the right, which creates incentives to appeal to the political center. They also encourage more moderate candidates to run in the first place, because they know they have a greater prospect of winning than in a district whose seat is safe for the other party.

[I’ve left out suggestions for the right direction for campaign finance reform]

Jan. 6 provided a painful demonstration of the dangerous currents gathering in American political culture. Every proposed election reform must now be measured against this reality to make sure political reform furthers American democracy.

I’m aware of ongoing debates about these issues, which there was no space to address in the NYT. My goal was to frame the general question and encourage debate and discussion about these specific proposals, along with additional ones that should be part of the conversation. I’ll respond in later posts or elsewhere to what I expect will be some pushback on some of these ideas.

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“Rightwing group nearly forced Wisconsin to purge thousands of eligible voters”

The Guardian:

well-connected conservative group in Wisconsin nearly succeeded in forcing the state to kick nearly 17,000 eligible voters off its rolls ahead of the 2020 election, new state data reveals.

The group, the Wisconsin Institute for Law and Liberty (Will), caused a national uproar in late 2019 when it successfully convinced a county judge to order the state to immediately remove more than 232,000 people Wisconsin suspected of moving homes from the state’s voter rolls. The state, relying on government records, had sent a postcard to all of those voters asking them to confirm their address, and Will sought to remove anyone who had not responded within 30 days.

Democrats on the commission refused to comply with the order, believing that the underlying data wasn’t reliable, and wanted to give voters until April 2021 to confirm their address before they removed them. Appeals courts intervened and blocked the removals; the case is currently pending before the Wisconsin supreme court. There were still more than 71,000 voters still on the list at the end of January who did not respond to the mailer (152,524 people on the list updated their registration at a new address).

But new data from the Wisconsin Elections Commission shows how disastrous such a purge could have been. And the dispute underscores the way fights over how states remove people from their voter rolls – often called purging – has become a critical part of protecting voting rights in America.

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Larry Tribe Calls Out Justice Thomas’s Trolling of Heather Gerken on Election Fraud in Recent Dissent

Tribe in The Hill:

Justice Thomas’s solo dissent is another matter altogether. The question at hand concerned only the relationship between a state legislature and the state constitution as construed by the state’s highest court. But Thomas seized the opportunity to rant against the nonexistent dangers of undetectable fraud and to suggest that the 2020 election — the most secure and reliable election in our nation’s history — was clouded by uncertainty that only the U.S. Supreme Court could clarify. While he had to concede that the Pennsylvania Supreme Court’s decision “does not appear to have changed the outcome in any federal election,” his ominous warning that “we may not be so lucky in the future” stoked the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction on the epicenter of democracy.

Moreover, Justice Thomas shamelessly distorted the words of Yale Law School’s dean, the distinguished election law scholar Professor Heather Gerken. In the midst of Republicans’ push to pass voter ID laws that ostensibly secured elections but actually disenfranchised Democratic voters, Dean Gerken had observed that anyone bent on pulling off voter fraud on a scale large enough to swing an election would be more likely to “steal some absentee ballots or stuff a ballot box or bribe an election administrator or fiddle with an electronic voting machine.” So here’s the kicker: Gerken’s point was simply that polling places are secure, so they don’t need extra “security” from voter-suppressing ID laws. Her point was not, as Justice Thomas asserted, that mail-in voting is insecure. Turning Dean Gerken’s point upside-down, Justice Thomas cited it for the altogether different and entirely unsubstantiated proposition that voting by mail is unacceptably vulnerable to fraud. Even if that inference could be drawn – which it can’t – it had nothing at all to do with the case before the Court.

Justice Thomas’s opinion is particularly egregious because those most aggrieved can hardly speak up. Joe Biden’s need to govern makes it counterproductive to engage in unending debate about the legitimacy of the 2020 election. Dean Gerken’s role as head of one of our great law schools makes it awkward for her to chastise that school’s own distinguished alumnus, Justice Thomas, for his intellectual dishonesty.

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Persily and Stewart: “The Miracle and Tragedy of the 2020 Election”

Can’t wait to read this from Nate Persily and Charles Stewart (forthcoming in the Journal of Democracy). Abstract:

The 2020 election was both a miracle and a tragedy. In the midst of a pandemic, election administrators pulled off a safe, secure, and professional election. Still, lies of voter fraud have cemented in the minds of tens of millions of Americans that the election was rigged.

As the first wave of the pandemic overtook the nation right as the presidential election season was beginning, most states responded by delaying their primaries and maximizing opportunities to vote by mail. We review how the quick actions of many states led to salvaging of the primary season, but also led to two cautionary tales, from Wisconsin and New York, that illustrated the disasters that could befall both mail and in-person voters if the nation did not act quickly. We recount the combination of actions taken by governors, state legislators, health officials, judges, and civil society to adapt election administration to the exigent realities of the pandemic and to cope with the logistical challenges state and local election officials faced.

We discuss metrics of success in the adaptations that took place — record-high turnout, widespread voter satisfaction, a doubling of mail voting without a concomitant increase in problems often associated with absentee ballots, and the recruitment of hundreds of thousands of new poll workers. We also explore how the competing narrative of dysfunction and a “stolen election,” propagated by President Trump and his supporters, led not only to the insurrection at the Capitol on January 1, but also to a historically deep chasm at the mass level between partisans in their trust of the election process and outcome. We conclude by noting that many states will be considering legislation that re-litigates the election by addressing non-problems, rather than building on the triumphs of the election.

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“Election officials defended the 2020 vote. In 2022, they’ll have to defend themselves.”

Politico:

Donald Trump transformed these once-obscure officials into either the enemies — or the saviors, as most would have it — of American democracy. Now, campaigns for secretary of state are becoming the next major arena of nationwide political combat.

Sitting secretaries and political groups are preparing for a flood of candidates, money and attention into campaigns for the newly prominent positions in 2022. Voting rules have become a bigger cause for both political parties, while coronavirus-fueled election changes combined with Trump’s conspiracy theories to turn secretaries of state into pivotal characters in last year’s presidential election.

The biggest battleground is likely to be Georgia, where Republican Secretary of State Brad Raffensperger is set to face dual challenges after Trump targeted him for certifying President Joe Biden’s victory there. Democrats are eager to take control of state election administration in Georgia, which has for years been at the center of national debates about voter suppression. But first, Raffensperger may see Trump endorse a primary opponent out of retribution for perceived slights.

“This will be a true test of where the Republican Party is going,” said Jordan Fuchs, who ran Raffensperger’s 2018 campaign and is now deputy secretary of state in Georgia. “There’s some growing pains now that Trump is not the leader of the Republican Party. And these primary elections are going to be defining for us for a very long time.”

Twenty-six states will have secretary of state elections next year, including five of the 10 closest states in the 2020 presidential election, and incumbents from both parties are preparing for tough battles. Michigan Secretary of State Jocelyn Benson, a Democrat up for reelection in 2022, said she will likely have to raise more money than before — but she expects it to be easier now.

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“Next front in gerrymandering wars will be whom to count”

Jowei Chen and I have written this column for the Washington Post, exploring the implications of changing the unit of apportionment from all people to adult citizens only. The op-ed is based on our forthcoming article in the California Law Review.

The gerrymandering wars are about to resume. Over the next year, every state in the country will have to redraw its congressional and legislative districts. In anticipation of redistricting, Republicans are eyeing a new tactic: For decades, states have equalized the numbers of people their districts contain. But the GOP is now pushing to equalize districts’ citizen voting-age populations instead. Under this approach, noncitizens and children would be invisible for remapping purposes. Only adult citizens would count. . . .

To find out what would happen if states made the switch, we instructed a computer algorithm to generate millions of statehouse maps for the 10 states with the smallest proportions of adult citizens. The algorithm incorporated line-drawing rules like compactness, respect for county boundaries, and compliance with the Voting Rights Act. But half the maps equalized people, while the other half did conservatives’ bidding by equalizing adult citizens instead.

Our results for minority representation were striking. Across all 10 states, the fraction of districts where minority voters can elect their preferred candidates (usually either Black or Latino, depending on the district’s population) fell by an average of three percentage points when the apportionment base changed from people to adult citizens. In major states such as Arizona, Florida, New York and Texas, this decline exceeded six percentage points. In Texas specifically, roughly 10 minority districts disappeared between the equal-person and the equal-adult-citizen simulations. These districts’ elimination would undo overnight a generation of slow diversification in the Texas Legislature, rendering the body unreflective of the Texas population.

Our partisan findings, however, were considerably less dramatic. Across all 10 states, the share of Republican districts rose by an average of just one percentage point when we switched the unit of apportionment from people to adult citizens. True, Republicans benefited more in a few states, Texas in particular. But in most states we studied, including Arizona, California, Georgia, Illinois and New York, there was effectively no difference in the parties’ fortunes between the equal-person and the equal-adult-citizen simulations. This was because many of the minority districts that vanished from one simulation set to the other remained Democratic. They would typically be represented by non-White Democrats beforehand, and by White Democrats afterward.

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“Activist shareholders pressing companies to disclose more of their political activity after Capitol attack”

WaPo:

A day after JPMorgan Chase announced it would freeze its political contributions in the wake of the Jan. 6 attack on the U.S. Capitol, the nation’s largest bank made an unpublicized move indicating it may not be eager to overhaul how it does business in Washington.

The company wrote the Securities and Exchange Commission asking the agency to block activist investors from forcing the bank to provide a fuller accounting of its political spending. Specifically, the shareholders, organized by social impact investment firm Rhia Ventures, want JPMorgan to report on how its campaign giving squares with its stated commitment to a lofty set of values.

The investors say the mob attack highlights the urgency of their cause. “This is the most extreme example of why companies need to dig deeper, articulate their values, then put their money where their mouths are,” said Shelley Alpern, director of shareholder advocacy for Rhia Ventures. “It’s not outrageous to ask companies to stay true to those values, so they not only do less collateral damage to society but suffer less blowback when contradictions are turned up and exposed.”

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Matt Masterson: “For trusted elections, we should model 2020”

New oped in The Hill:

In the wake of the horrific Jan. 6 attack on the U.S. Capitol — which was fueled by months of lies and conspiracy theories — election officials are left to pick up the pieces of our fractured democracy and begin to rebuild trust in our elections. They cannot and should not be asked to do this alone. 

It took a whole of government effort to secure the 2020 election and it will take that same level of investment to restore confidence in future elections. President Biden and his administration can play a critical role in this work.

First, the new administration must double down on support to state and most importantly, local election officials. These heroes are being asked to defend their systems against threats from criminal actorsnation states and purveyors of disinformation. …

Second, the Biden administration should quickly push for the replacement of any voting system that does not produce a paper record of the vote. Election officials have made steady progress in this area, with more than 92 percent of votes cast on a verifiable paper ballot in the 2020 election. This improvement proved to be vital in the days following the election, when lies about hacked voting machines began to spread among the public. In response to these lies, the state of Georgia took the unprecedented step of hand counting more than five million ballots to verify the accuracy of the machine-counted results. Georgia would not have been able to do this as recently as 2018, when the state used completely paperless systems that produced no independently auditable record. ….

Finally, the administration should work with the nation’s governors, secretaries of state, election directors, mayors and county officials to make meaningful financial investments in state and local IT security. An investment in local IT security and resources is an investment in election security. 

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“A partisan battle in an overreach of a case”: Minority voters are caught between the political parties at the Supreme Court, with the Voting Rights Act hanging in the balance (My SCOTUSBlog Preview of Brnovich)

I have written this analysis for SCOTUSBlog. It begins:

Brnovich v. Democratic National Committee is a strange voting rights case. Rather than the typical case, in which a voting rights group representing minority voters sues a state or locality for engaging in electoral discrimination, this case pits the two major political parties against each other, and Republican officials in Arizona against Democratic officials. Amicus briefs from voting rights groups filed in Brnovich exhibit strong concern about preserving Section 2 of the Voting Rights Act as a tool to tackle discriminatory voting laws. Doing so will be tough before a new conservative supermajority on the Supreme Court….

Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”).

The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways. From an enhanced “proximate causation” requirement suggested by the United States, to a carve-out from Section 2 for laws that affect voter “qualifications” or “time, place, and manner” restrictions for voting, the briefs filed by Republicans look for ways to drain Section 2 of all of its powers to be used in the vote denial context.

It is no wonder then that the brief filed by Arizona’s Democratic secretary of state makes arguments for part of the case to be dismissed on standing grounds and to reject the stingy Section 2 tests proposed by Republicans. A group of prominent election scholars filed a brief asking for the petition to be dismissed as improvidently granted, leaving the lower court opinion in place without making new law. Voting rights amicus briefs argue for preservation of a meaningful Section 2 test for vote denial, and spend little time defending the 9th Circuit’s decision that these particular Arizona laws violate Section 2. Even the Biden administration, in a new letter to the court, does not defend the 9th Circuit’s result; it only seeks to distance itself from the Trump administration’s stingy test for vote denial under the Voting Rights Act.

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Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting: A Ticking Time Bomb To Go Off in a Later Case

You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link beginning at page 25 of the pdf. The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.

None of the dissenting Justices believed that these cases could somehow retroactively affect the outcome of the 2020 election. Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts. The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh (who did not note a dissent in any of these cases today) expressed the view that the Constitution constrains the actions of state courts in such circumstances (viewing the legislature’s power as very broad).

This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. As I explained back in November in a NY Times oped:

The worst appears yet to come. In one of the lawsuits that remains technically alive at the Supreme Court out of Pennsylvania, Mr. Trump and his allies have advanced a muscular version of something that’s become known as the “independent state legislature” doctrine. Taken to its extreme, the doctrine says that state legislatures have complete authority to set election rules absent congressional override, and that their power to set election rules cannot be overcome even by state supreme courts applying right-to-vote provisions in state constitutions.

That’s the basis for Mr. Trump’s claim in the U.S. Supreme Court that the Pennsylvania Supreme Court acted unconstitutionally in requiring the counting of mail-in ballots arriving up to three days after Election Day. (This is now a question for future elections because there are not enough ballots at stake to affect the 2020 count.) The doctrine also could be potentially violated by state and local election agencies even when they act under the Legislature’s authority to administer elections.

In the course of pre-election proceedings, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas issued or signed onto separate opinions endorsing the strong reading of this doctrine. The newest justice, Amy Coney Barrett, may well agree. And Chief Justice John Roberts, while not agreeing it was appropriate to apply this doctrine in these pre-election cases, was the lead dissenter in a 2015 case out of Arizona advancing a similar theory about broad legislative power to set the rules for federal elections.

Either in the Pennsylvania case or in another, the court’s conservative majority could soon embrace a strong version of the independent state legislature doctrine. This could take state courts out of their essential role in protecting voting rights. It could potentially eliminate the ability of voters to use ballot measures to enact nonpartisan redistricting reform and other measures that apply to federal elections. It could give conservative courts looking for an excuse a reason to scuttle voter-protective rules enacted by state election boards.

Together, the Trump-related precedents mean that neither state nor federal courts are likely to be able to play a backstop role when Republican state legislatures pass new restrictive voting laws, and that efforts to get around these state legislative efforts are likely to fail as well. Although in theory Congress has the power to override state legislatures with voter-protective legislation for federal elections, it is hard to see any of that getting through the next Congress even if Democrats barely grab control by winning the upcoming pair of Senate runoffs in Georgia.

So why didn’t the Court go further in this case? My guess is that it is either the fact that the case is moot (and the Court would rather address the issue in the context of a live case, but with lower stakes) or because the Trump cases are somewhat radioactive at the Court. Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate. It would thrust the Court back in the spotlight on an issue the Justices showed repeatedly they wanted to avoid.

So the bottom line is that the independent state legislature doctrine hangs out there, as a ticking time bomb, waiting to go off in a future case.

[This post has been updated.]

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“Impeachment is over. But other efforts to reckon with Trump’s post-election chaos have just begun.”

WaPo:

The state of Michigan and the city of Detroit have asked a federal judge to sanction attorneys who filed lawsuits that falsely alleged the November presidential vote was fraudulent, the first of several similar efforts expected around the country.

An Atlanta-area prosecutor has launched a criminal investigation into whether pressure that President Donald Trump and his allies put on state officials amounted to an illegal scheme to overturn the results of the election.

And defamation lawsuits have been filed against Trump’s allies — the start of what could be a flood of civil litigation related to false claims that the election was rigged and to the subsequent riot at the U.S. Capitol on Jan. 6.

Although Trump was acquitted by the Senate on a charge that his rhetoric incited the deadly Capitol siege, public officials and private companies are pursuing a multi-front legal effort to hold him and his allies accountable in other ways. The actions target the former president and numerous others — including elected ­officials, media pundits and lawyers — who indulged and echoed his falsehoods that President Biden did not win the election.

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“Republican leader Steve Scalise refuses to admit Trump lost election to Biden”

The Guardian:

A senior Republican House leader has refused to admit Joe Biden won the 2020 presidential election against Donald Trump.Growing number of Republican donors aim to prise party from Trump influenceRead more

Congressman Steve Scalise of Louisiana, the House minority whip, appeared on ABC’s This Week more than three months after Biden won the electoral college 306-232 and the popular vote by more than 7m ballots and just over a month after the Democrat was sworn into office.

Trump now lives in Florida but he has refused to accept reality and concede, even after having the vast majority of cases mounted to pursue baseless claims of voter fraud laughed and thrown out of court.

He was impeached a second time for inciting the attack on the US Capitol on 6 January, having told supporters to “fight like hell” to overturn the election. Thanks to Republicans in the Senate, he was acquitted.

“Clear this up for me,” ABC host Jonathan Karl said to Scalise on Sunday. “Joe Biden won the election. He is the legitimate president of the United States. The election was not stolen, correct?”

“Look,” Scalise said, “Joe Biden’s the president. There were a few states that did not follow their state laws. That’s really the dispute that you’ve seen continue on.

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“State GOP lawmakers propose flurry of voting restrictions to placate Trump supporters, spurring fears of a backlash”

WaPo:

GOP state lawmakers across the country have proposed a flurry of voting restrictions that they say are needed to restore confidence in U.S. elections, an effort intended to placate supporters of former president Donald Trump who believe his false claims that the 2020 outcome was rigged.

But the effort is dividing Republicans, some of whom are warning that it will tar the GOP as the party of voter suppression and give Democrats ammunition to mobilize their supporters ahead of the 2022 midterms.

The proposals include measures that would curtail eligibility to vote by mail and prohibit the use of ballot drop boxes. One bill in Georgia would block early voting on Sundays, which critics quickly labeled a flagrant attempt to thwart Souls to the Polls, the Democratic turnout effort that targets Black churchgoers on the final Sunday before an election.

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“Mark Changed The Rules’: How Facebook Went Easy On Alex Jones And Other Right-Wing Figures

Deep dive from BuzzFeed:

In April 2019, Facebook was preparing to ban one of the internet’s most notorious spreaders of misinformation and hate, Infowars founder Alex Jones. Then CEO Mark Zuckerberg personally intervened.

Jones had gained infamy for claiming that the 2012 Sandy Hook elementary school massacre was a “giant hoax,” and that the teenage survivors of the 2018 Parkland shooting were “crisis actors.” But Facebook had found that he was also relentlessly spreading hate against various groups, including Muslims and trans people. That behavior qualified him for expulsion from the social network under the company’s policies for “dangerous individuals and organizations,” which required Facebook to also remove any content that expressed “praise or support” for them.

But Zuckerberg didn’t consider the Infowars founder to be a hate figure, according to a person familiar with the decision, so he overruled his own internal experts and opened a gaping loophole: Facebook would permanently ban Jones and his company — but would not touch posts of praise and support for them from other Facebook users. This meant that Jones’ legions of followers could continue to share his lies across the world’s largest social network.

“Mark personally didn’t like the punishment, so he changed the rules,” a former policy employee told BuzzFeed News, noting that the original rule had already been in use and represented the product of untold hours of work between multiple teams and experts.“Mark personally didn’t like the punishment, so he changed the rules.”

“That was the first time I experienced having to create a new category of policy to fit what Zuckerberg wanted. It’s somewhat demoralizing when we have established a policy and it’s gone through rigorous cycles. Like, what the fuck is that for?” said a second former policy employee who, like the first, asked not to be named so they could speak about internal matters.

“Mark called for a more nuanced policy and enforcement strategy,” Facebook spokesperson Andy Stone said of the Alex Jones decision, which also affected the bans of other extremist figures.

Zuckerberg’s “more nuanced policy” set off a cascading effect, the two former employees said, which delayed the company’s efforts to remove right wing militant organizations such as the Oath Keepers, which were involved the Jan. 6 insurrection at the US Capitol. It is also a case study in Facebook’s willingness to change its rules to placate America’s right wing and avoid political backlash.

Internal documents obtained by BuzzFeed News and interviews with 14 current and former employees show how the company’s policy team — guided by Joel Kaplan, the vice president of global public policy, and Zuckerberg’s whims — has exerted outsize influence while obstructing content moderation decisions, stymieing product rollouts, and intervening on behalf of popular conservative figures who have violated Facebook’s rules.

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“Trump repeats election claims in interviews, is unchallenged”

AP:

In the first television interviews of his post-presidency, Donald Trump repeated his false claims that the election was stolen from him 10 times — each instance unprompted and unchallenged.

Trump emerged this week for interviews with Fox News Channel, Newsmax and One America News Network tied to the death of Rush Limbaugh.

Each network actively appeals to Trump’s base conservative audience. And the way the interviews were conducted illustrates how difficult it may be to change the minds of supporters who believe the former president’s unfounded narrative.

Nearly a month after he left office, Trump drove his point home on each network:

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Bright Line Watch Expert Study on American Democracy

From the summary:

We asked our experts to assess 16 prominent reform proposals that aim to improve the quality of American democracy. Many of the proposals are drawn from the Our Common Purpose project that was coordinated by the American Academy of Arts and Sciences. Each expert participant was asked to rate eight randomly drawn proposals. The full set of statements describing each reform is in the Appendix. The figure below shows expert support and opposition for each proposal.

Experts overwhelmingly support the proposed reforms. Of the 16 we tested, majorities of our expert respondents strongly supported 9 and strongly or moderately supported 15. The only proposal that did not garner majority support was compulsory voting.

The proposals fall into distinct categories. The largest group aims to increase voter participation, particularly among traditionally marginalized groups. Increasing flexibility on when and how ballots can be cast (95% support), guaranteeing suffrage rights to ex-felons (91%), same-day registration (91%), moving Election Day to a national holiday (87%), and pre-registering young voters (85%) all attracted support from more than four in five experts. By contrast, compulsory voting was supported by only 29% of experts, perhaps reflecting discomfort with the manner by which it tries to increase participation as well as recent research on the range of unintended consequences it can generate, including disillusionment with democracy itself.

Another group of proposals seeks to reduce the influence of large individual and corporate campaign donors in American elections. These include increased transparency on the source of donations, providing public campaign funding, and amending the Constitution to impose greater restrictions on private spending. All these garner strong support among the experts (98%, 87%, and 88%, respectively).

A third set of proposals focuses on the rules for converting voter support into representation. At the top of this list is requiring states to establish non-partisan redistricting commissions to reduce partisan gerrymandering (95% support). Next, at 84%, is support for switching to a system in which the president is elected by direct popular vote instead of by the Electoral College.6 Also in this category are two electoral reforms, ranked-choice voting (78% support) and eliminating the requirement for Members of Congress to be elected from single-member districts (73%), both of which aim to open paths to electoral success for candidates other than those who can prevail in either Democratic or Republican primary contests. 

In turn, enlarging the House of Representatives (64%) would increase the ratio of representatives to citizens, allowing for a more fine-grained mapping of representatives’ characteristics onto constituent preferences.

The last two proposals focus on the conduct of governance rather than elections. The first would limit the period for which federal judges could serve on the Supreme Court to 18 years (77% support), guaranteeing a vacancy on the Court every two years. This proposal seeks to reduce the stakes for high court appointments and thereby cool the attendant politics both during elections and in the day-to-day operation of the Senate. The next would eliminate the 60-vote requirement to suspend debate in the Senate, eliminating the filibuster and effectively returning the chamber to majority rule (74%). …

Threats to democracy

To further unpack the significance of these events, we asked experts to rate the severity of the threat they posed to democracy. Unsurprisingly, more than 90% of experts viewed the items that scored highest across the (ab)normality-and-importance dimensions as either a moderate, serious, or grave threat.

One item that our experts rated as abnormal was also one that few viewed as posing much of a threat to democracy: the House impeaching President Donald Trump for a second time. In total, 93% of our academic experts rated the two impeachments themselves as presenting little or no threat to U.S. democracy (7% sensed a moderate threat; none said it was a serious or grave threat). In the wake of Trump’s second acquittal, some prominent Republicans have voiced a different perspective, predicting that the impeachments would create a spiral of partisan retribution. For instance, Senator Lindsey Graham suggested that Vice-President Kamala Harris could be impeached if Republicans retake the House of Representatives for having expressed support for Black Lives Matter protesters in summer 2020.

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“GOP state lawmakers and election officials launch commission to examine voting laws”

CNN:

Republican state legislators and secretaries of state on Wednesday announced the creation of a commission that will look at election laws amid a push to curb expanded access to voting.

The announcement from the Republican State Leadership Committee comes as GOP state lawmakers in key battlegrounds are now racing to roll back provisions that expanded access to voting, citing constituent concerns about voting integrity after the election was marred by baseless allegations of voter fraud pushed by former President Donald Trump and other GOP officials. Those claims culminated in the deadly January 6 insurrection at the US Capitol.

The commission said in a statement that the goal is “to restore the American people’s confidence in the integrity of their free and fair elections” by “making it easier to vote and harder to cheat.”

Alabama Secretary of State John Merrill and Michigan state Sen. Ruth Johnson are leading the commission, which will work alongside state legislators as they push to make changes to election laws.

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